Privacy rights getting some needed support from courts: Brad Smith

Privacy advocates are finding some positive trends in court rulings and elsewhere.

For instance, in recent rulings the U.S. Supreme Court has said police will likely need a warrant before searching a cellphone belonging to an arrested suspect.

The Riley vs. California decision is seen as a victory for privacy rights when government surveillance efforts and other tactics worry many privacy advocates.

David Riley was convicted – in connection with a 2009 San Diego shooting – in part via a photo found on his cellphone. But it was located without first getting a warrant, according to Reuters.

Chief Justice John Roberts said in the ruling sometimes there are emergencies where a search can take place without a warrant, but in many other situations such searches are unconstitutional.

Brad Smith, general counsel and executive vice president at Microsoft, praised the ruling and saw it as a key event.

“More than in any other recent decision, the Supreme Court [has] advanced privacy in a digital era characterized by ubiquitous computing,” Smith said about the ruling in a blog post. “The scales of justice shifted in a profound way toward a new ideal of privacy in a digital world.”

“The Supreme Court’s decision strikes the right balance between public safety and the privacy concerns of users of mobile technology,” he explained.

There are historical roots to such decisions. Smith traces the privacy trend as it relates to new technology back to the 1800s. It was in 1890 when Louis Brandeis, who would later become a Supreme Court justice, wrote in the Harvard Law Review that “mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.’”

Another important case came in 2012, when Justice Sonia Sotomayor wrote a concurring opinion in U.S. vs. Jones. The San Diego police put a GPS locator on a suspect’s car. The Supreme Court ruled that this violated the principle of reasonable searches and seizures.

Sotomayor warned how police could use “GPS-enabled smartphones” to track people. She points out “GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations,” and it could “alter the relationship between citizen and government in a way that is inimical to democratic society.”

Meanwhile in the Riley decision, Roberts pointed out “most people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read – nor would they have any reason to attempt to do so.”

But smartphones let them keep such a record on their person.

In fact, many smartphones are “minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers,” Roberts said. “Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’”

In addition, Smith noted that Roberts’ opinion featured what is believed to be the “first explicit discussion of privacy in the context of cloud computing.”

“The same type of data may be stored locally on the device for one user and in the cloud for another,” Roberts said.

“For those of us at Microsoft and other tech companies who are seeking to ensure that the Fourth Amendment protects information stored in the cloud, these are encouraging words,” Smith said.

Congress, too, has taken some new steps to protect privacy. Looking ahead, there is an “opportunity to bring people together to address next-generation privacy issues,” Smith said.

Still, Smith wants Congress to do more to protect private data from U.S. government surveillance.

“We need Congress to close the door on unfettered bulk collection of data,” Smith said in a recent speech at the Brookings Institution as reported by InsideCounsel. There are only limited times when private communications can be provided to the government. “If the US government felt that it had a need for the private communications of our customers, it should turn to the legal process, and if it felt that legal process didn’t go far enough, it shouldn’t ask us for help,” Smith said. “It should turn to Congress because that is the way that the fundamental rights of citizens should be protected and regulated in a democratic society.”